James Madison Papers

James Madison to Joseph C. Cabell, 18 March 1827

Montpellier Mar. 18th 1827

my Dear Sir

I recd. by the mail from Richmond your favor of the 12th. I was not unapprized of the melancholy cause of your absence; but your silence would have been sufficiently explained by the better use of your time there, than in giving an answer to a letter so little requiring it as mine. I am truly sorry for the failure of the Legislature to do what was so much due to the character of the State, and to the merits and memory of Mr. Jefferson. The footing on which the meetings of the Visitors is put, is a valuable accomodation to them; as is the loan authorized an acceptable one to the Creditors of the University. One of them was with difficulty dissuaded lately from appealing to the law for his debt. I hope they will all be a little patient now.

I should regret as much as you & our Colleagues, a necessity for a "Called Board" and hope it may be avoided. You will have learned that Mr. Key has finally decided on returning to England. He wishes for a little indulgence as to the time of his being out of office; being desirous of attending the examination of the Students, & then of avoiding the expence of waiting for a Packet, or of going with his family by land from Liverpool. On the first point the indulgence is due to the change in the time fixed for the close of the Session; and on the other to the spirit in which we wish him to leave us, and the expediency of cherishing a confidence in our liberal dispositions in a quarter where we may be obliged to seek occasional supplies for vacant professorships; His purpose will be answered by our not throwing him on his own resources till the middle of Augst. The question now is how we shall fill the vacated Chair. We must all turn our thoughts to the subject.

Mr. Hassler will probably be brought to our attention. He is I believe well qualified by his mathematical powers but of the other requisite aptitudes I have no evidence. What are the pretensions of the State Engineer, of whom I know nothing? A Mr. Nuttall has been heard of as a man of science. He also may be an object for enquiry & consideration. I shall write to Mr. Gallatin, to aid us with his enquiries in England, and it may be well to gather such information as the English Professors at the University can give. I am afraid that we have little chance of finding a satisfactory successor to Mr. Key among the unemployed, of American growth. We must all turn our thoughts to the subject & interchange the results of them, that we may be prepared for a choice at the next meeting or sooner, if it be found that we can sooner unite in one.

Mar. 22

I had noticed the loss of the proposed amendment to the Resolution on the subject of the Tariff, and the shaft levelled at yourself. Intemperance in politics is bad eno’. Intolerance has no excuse. The extreme to which the Resolution goes in declaring the protecting duty as it is called unconstitutional is deeply to be regretted. It is a ground which can not be maintained, on which the State will probably stand alone, and which by lessening the confidence of other States in the wisdom of its Councils, must impede the progress of its sounder doctrines. In compliance with your request I offer a few hasty remarks on topics and sources of information which occur to me.

1.  The meaning of the "power to regulate commerce" is to be sought in the general use of the phrase, in other words, in the objects generally understood to be embraced by the power, when it was inserted in the Constitution.

2.  The power has been applied in the form of a tariff, to the object of encouraging particular domestic occupations, by every existing Commercial nation.

3. It has been so used & applied particularly & systematically by G. Britain whose commercial vocabulary is the parent of ours.

4 The inefficacy of the power in relation to manufactures as well as to other objects, when exercised by the States separately, was among the arguments & inducements for revising the old Confederation, and transferring the power from the States to the Govt. of the U. S: Nor can it be supposed that the States actually engaged in certain branches of manufactures, and foreseeing an increase of them, would have surrendered the whole power to the General Govt. <commerce> unless expected to be more effectual for that as well as other purposes, in that depository, than in their own hands. Nor can it be supposed any of the States, meant to annihilate such a power, and thereby disarm the nation from protecting occupations & establishments, important to its defence & independence, agst. the subversive policy of foreign Rivals or Enemies. To say that the States may respectively encourage their own manufactures, and may therefore have looked to that resource when the Constitution was formed is by no means satisfactory. They could not protect them by an impost, if the power of collecting one had been referred, a partial one having been found impracticable; so also as to a prohibitory regulation. Nor can they do it by an excise on foreign articles, for the same reason, the trade being necessarily open with other States which might not concur in the plan. They could only do it by a bounty, and that bounty procured by a direct tax, operating equally a tax unpopular for any purpose, and obviously inadmissible for that. Such a State of things could never have been in contemplation when the Constitution was formed.

5. The printed Journal of the Convention of 1787. will probably shew positively or negatively that the Commercial power given to Congress embraced the object in question.

6. The proceedings of the State Conventions may also deserve attention

7. The proceedings & debates of the first Congress under the present Constitution, will shew that the power was generally, perhaps universally, regarded as indisputable.

8. Throughout the succeeding Congresses, till a very late date, the power over Commerce has been exercised or admitted, so as to bear on internal objects of utility or policy, without a reference to revenue. The University of Virginia very lately had the benefit of it in a case where revenue was relinquished; a case not questioned if liable to be so. The Virginia Resolutions, as they have been called, which were proposed in Congress in 1793-4. and approved throughout the State, may perhaps furnish examples.

9. Every President from Genl. W. to Mr. J. Q. Adams inclusive have recognized the power of a tariff in favor of manufactures, without indicating a doubt, or that a doubt existed any where.

10. Virginia appears to be the only State that now denies, or ever did deny the power; nor are there perhaps more than a very few individuals, if a single one, in the State who will not admit the power in favor of internal fabrics or productions necessary for public defence on the water or the land. To bring the protecting duty in those cases, within the war power would require a greater latitude of construction, than to refer them to the power of regulating trade.

11. A construction of the Constitution practised upon or acknowledged, for a period of nearly forty years, has received a national sanction not to be reversed, but by an evidence at least equivalent of the national will. If every new Congress were to disregard a meaning of the instrument uniformly sustained by their predecessors, for such a period, there would be less stability in that fundamental law, than is required for the public good, in the ordinary expositions of law. And the case of the Chancellor’s foot, as a substitute for an established measure, would illustrate the greater as well as the lesser evil of uncertainty & mutability.

12. In expounding the Constitution it is as essential as it is obvious, that the distinction should be kept in view, between the usurpation, and the abuse of a power. That a Tariff for the encouragment of manufactures may be abused by its excess, by its partiality, or by a noxious selection of its objects, is certain. But so may the exercise of every Constitutional power; more especially that of imposing indirect taxes, though limited to the object of revenue. And the abuse cannot be regarded as a breach of the fundamental Compact, till it reaches a degree of oppression, so iniquitous and intolerable as to justify civil war, or disunion pregnant with wars, than to be foreign ones. This distinction may be a key to the language of Mr J--n, in the letter you alluded to. It is known that he felt and expressed strongly, h<is> disapprobation of the existing Tariff and its threatened increase.

13. If mere inequality, in imposing taxes, or in other Legislative Acts, be synonymous with unconstitutionality, is there a State in the Union whose constitution would be safe? Complaints of such abuses are heard in every Legislature, at every Session; and where is there more of them than in Virginia; or of pretext for them, than is furnished by the diversity of her local & other circumstances: to say nothing of her constitution itself, which happens to divide so unequally the very power of making laws.

I wish I could aid  the researches to which some of the above paragraphs may lead. But it would not be in my power; if I had at command more than I have, the means of doing it. It is a satisfaction to know that the task, if thought worth the trouble, will be in better hands. With great respect & truest regard

James Madison

Govr. Tyler remarked that a complete sett of the journals of the Assembly did not exist at Richd. I believe I mentioned my readiness to supply, if enabled by my broken sett, the deficiency, or any part of it.

It will require all your goodness to excuse so blotted a sheet; but I rely on it, rather than undertake a task, which my fingers protest against.

Draft (DLC).

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